United States v. Ductan

• Decision Date: 02 September 2015
• Docket Number: No. 14–4220.,14–4220.
• Citation: 800 F.3d 642
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Phillip DUCTAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

800 F.3d 642

UNITED STATES of America, Plaintiff–Appellee

v.Phillip DUCTAN, Defendant–Appellant.

No. 14–4220.

United States Court of Appeals, Fourth Circuit.

Argued: May 13, 2015.

Decided: Sept. 2, 2015.

ARGUED:Joshua B. Carpenter, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. William Michael Miller, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF:Ross Richardson, Executive Director, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Erin E. Comerford, Special Assistant United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Before MOTZ, SHEDD, and DIAZ, Circuit Judges.

Opinion

Vacated and remanded by published PER CURIAM opinion. Judge DIAZ wrote a separate concurring opinion.

PER CURIAM:

Phillip Ductan appeals his convictions for conspiracy to possess with intent to distribute marijuana, possession with intent to distribute marijuana (and aiding and abetting the same), and carrying a firearm during and in relation to those drug trafficking crimes, in violation of 21 U.S.C. §§ 841 and 846, 18 U.S.C. § 2, and 18 U.S.C. § 924(c)(1). Ductan contends that the district court violated his Sixth Amendment right to counsel when it (1) required him to proceed pro se after finding that he had forfeited his right to counsel, and (2) subsequently removed him from the courtroom and chose a jury in his absence.

We hold that the magistrate judge erred in concluding that Ductan forfeited his right to counsel. And nothing in the record supports the government's alternate contention that Ductan waived—either expressly or impliedly—that right. Because the error is not harmless, we vacate Ductan's conviction and remand for a new trial.

I.

A.

In April 2004, a confidential informant told the Charlotte–Mecklenburg Police Department (the “CMPD”) that Ductan had offered to sell him 100 pounds of marijuana. In response to the tip, the CMPD set up a controlled buy at a Cracker Barrel restaurant in Charlotte, North Carolina. When the informant arrived, he was met by Ductan and two other men, Mark Lowery and Landis Richardson, who were seated in a Ford SUV. After Ductan showed the informant a package of marijuana, CMPD officers moved in to arrest the three men, prompting Ductan to throw a firearm on the ground and attempt to flee. The officers discovered other firearms at the scene, as well as a significant quantity of marijuana in Lowery's nearby SUV. Ductan was charged in North Carolina state court with trafficking in marijuana and carrying a concealed firearm, but the charges were dismissed.

B.

In September 2004, a federal grand jury indicted Ductan and his co-conspirators on charges of conspiracy to possess with intent to distribute marijuana (in violation of 21 U.S.C. § 846 ), possession with intent to distribute marijuana and aiding and abetting the same (in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 ), and carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1) ). An arrest warrant issued, but Ductan was not arrested until May 2012.

At his initial appearance before the magistrate judge, Ductan indicated that he had retained attorney Charles Brant to represent him. Brant, however, soon moved to withdraw, citing Ductan's uncooperativeness, refusal to sign a discovery waiver as a precondition for the government providing written discovery, and lack of communication.

At the hearing on Brant's motion, the magistrate judge confirmed that Ductan no longer wanted Brant to represent him, and asked Ductan whether he wished to hire another lawyer or have the court appoint counsel. Ductan complained that it was difficult to find counsel while incarcerated, but insisted that he “d [id] not want to consent to having a lawyer appointed.”

J.A. 28. Ductan also told the judge that he did not want to represent himself.

After the judge explained that Ductan's options were to represent himself, hire new counsel, or ask the court to appoint counsel, Ductan began making nonsense statements, requesting “a form 226 form” and informing the court that he was “a secured party creditor.” J.A. 29. The judge then instructed the prosecutor to summarize the charges and maximum penalties, but after the prosecutor finished, Ductan stated, “I do not understand what he is saying. I'm only here for settlement of the account.” J.A. 33. The judge twice asked Ductan whether he was “under the influence of any alcohol or drugs,” but Ductan gave nonsense responses. J.A. 34. The judge then told Ductan that he would not appoint a lawyer because “by making nonsense statements,” Ductan could “be found to have waived [his] right to counsel,” although he directed the Federal Defender to appoint standby counsel. J.A. 35.

Following the hearing, the magistrate judge issued an order granting Brant's motion to withdraw and summarizing the proceedings. United States v. Ductan, No. 3:04–CR–252 (W.D.N.C. Oct. 5, 2012), ECF No. 142. Although the judge noted that Ductan had not “knowingly and intelligently waived his right to counsel,” he held that as a result of Ductan's frivolous arguments and evasive responses, Ductan had “forfeited his right to counsel in this matter.” Id. at 2.

A month later, Ductan's standby counsel Randy Lee moved to withdraw. According to Lee, Ductan did not want Lee “to represent him in any capacity” and also refused to sign a discovery agreement. J.A. 42. Lee explained that he was unable to adequately prepare for the case and would not be ready if asked to assist at trial. Lee said that he would accept appointment as full-time counsel, but was not comfortable continuing as standby counsel.

At the hearing on Lee's motion to withdraw, Ductan complained that he did “not feel confident that [Lee] would represent [him] adequately” because Lee had spent little time meeting with him. The magistrate judge responded that Lee was merely standby counsel and was not defending Ductan, because Ductan had “waived [his] right to having an appointed attorney” at the previous hearing and was therefore “representing [him]self.” J.A. 49. Ductan replied that he did not want Lee to remain in the case in any capacity, explaining that he was “seeking private counsel,” J.A. 50, and “d[id] not want to contract with the government at all, as far as counsel's concerned,” J.A. 57.

The magistrate judge denied Lee's motion to withdraw. The judge explained that while he understood the difficult position Lee was in, Lee would not have to try the case because Ductan “by his conduct ... had waived his right to appointed counsel[, s]o his option is to hire a lawyer or represent himself.” J.A. 53. Before concluding the hearing, the judge briefly explained to Ductan the risks of proceeding pro se, emphasizing that Ductan was on his own unless he either “hire[d] an attorney” or “allow[ed] Mr. Lee to help.” J.A. 59.

C.

Ductan thereafter appeared before the district court for calendar call. The court advised Ductan on the advantages of professional representation, noting that although Ductan had waived his right to appointed counsel, he was free to hire counsel. In response, Ductan said that he was a “secured party creditor” and was seeking private counsel. Supp. J.A. 41.

Ductan also stressed that he “could not properly represent [him]self.” Id.

Jury selection began the following day, with Ductan representing himself and Lee present as standby counsel. Ductan told the district court that the “defense is not prepared right now to move forward with any proceedings.” J.A. 64. Ductan also repeatedly interrupted as the court attempted to call the venire, demanding to know whether he was “in a contract court or a criminal court,” asserting that he was “the beneficiary of a trust,” and making other nonsense statements. J.A. 65–66. When Ductan continued to speak after the court directed him to stop interrupting, he was held in contempt and removed from the courtroom.

The district court directed that Ductan be placed in a holding cell from which he could observe the proceedings remotely. The court told the potential jurors that Ductan was representing himself and had opted not to be present for jury selection. Although the court had Lee introduce himself, it did not address his role in the jury selection process. The court then continued with voir dire, during which the government moved to strike several jurors for cause and exercised peremptory strikes. Lee did not move to strike any jurors or otherwise participate, except to join the government and the court at a brief bench conference.

After the jury was empaneled, the district court brought Ductan back into the courtroom and told him that it “would love to have [him] participate” in the trial and would purge the contempt citation if he was willing to obey the court's directives. J.A. 119. Ductan responded, “I do not want to represent myself. I would like to seek private counsel.” J.A. 120. Ductan also confirmed that he did not want Lee to assume duties as trial counsel, at which point the district court concluded that it “appears ... he's choosing self-representation then because we're ready to go.” J.A. 121. However, when Lee asked Ductan if that was a fair representation of his choice, Ductan responded, “No, it is not,” and stated that he “d[id] not want to be represented in this format.” J.A. 122. The district court then began the trial, instructing Ductan that he was representing himself but could seek assistance from Lee if he wished.

D.

Ductan's trial proceeded uneventfully. Ductan waived his opening statement but cross-examined several of the government's witnesses, recalled one witness during his case, and consulted occasionally with Lee. Ductan also gave a closing argument, emphasizing that there was reasonable doubt and arguing his good character to the jury (over the government's objections). The jury found Ductan...